New York's Vehicle and Traffic Law section 388 makes an owner of a car responsible for the actions of a driver of that car. If the driver gets into an accident and hurts someone, that injured party can collect from the owner of the vehicle. New York also allows a passenger to sue a driver when both get into an accident.
The case of Schuyler v. Perry brings up an interesting question. The case involves a 2 car collision. The plaintiff was the owner of a car she was also a passenger in. She sues her driver and the 2nd car. The second car argues that any damages award from it should be limited because as an owner, the plaintiff has vicarious liability for her driver's negligence. In other words, the second driver is trying to impute comparative negligence on the plaintiff.
The Court said that vicarious liability could not be invoked in such a case. The Court looked beyond the language of 388 to its intent as expressed by other Courts. The intent of 388 is to expand protections for people injured in car accidents. The Court quoted NY's highest court, "where the general rule now is that a passenger's right to recover should not be barred merely because he bears some special relationship to the driver...." Kalechman v Drew Auto Rental, 33 NY2d 397.
This decision serves two aims. The first is to reaffirm that vicarious liability and CPLR 388 is a weapon for the plaintiff, not the defendant. The second is to underscore the principle that in most cases a passenger is held to have no negligence in a car accident. After all, the passenger wasn't driving. By refusing to impute vicarious liability to the owner/passenger, the Court did not expand the very narrow circumstances (ex: knowingly getting into a car w/ a drunk driver) where a passenger can be negligent. Car crash victims can breathe a sigh of relief; their protections remain intact.
Friday, October 9, 2009
Wednesday, September 30, 2009
When is a Forklift Not a Forklift?
The Supreme Court, New York County, made an important ruling last week. The decision in McCoy v. Metropolitan Transit Authority improved an injured worker's ability to seek compensation.
In McCoy, the plaintiff was injured during the transport of a 20 foot long beam via a multifunction forklift. The forklift had two modes, it could act as a traditional forklift, or it could be converted into a mobile crane, complete with boom. It was while in this crane mode that plaintiff suffered his injury.
The question for the Court was, which law governing safety precautions governed the operation of this machine, forklift regulations or crane regulations? The answer: BOTH
The Court reasoned that when dealing with multifunction machines, the applicable law changes with the function of the machine. Multifunction vehicles cannot be limited to one standard of law when they are not limited to one function. In this case, the multifunction forklift machine would be governed by forklift regulations when it was being used as a forklift. When it was being used as a mobile crane, the law governing cranes must be followed.
This ruling applies common sense to the law. When most of the safety regulations governing work machines were written, multifunction vehicles were virtually non existent. This decision allows the courts to elevate function over form. It allows a court to focus on what a machine was doing at the time of an accident, not what other functions the machine has the capability to do. It allows the court to look beyond the title of a machine to its actual use. For instance, in this case, the Court did not allow the defendant to hide behind the technicality that the machine was called and billed as a forklift. The machine was used as a crane, so it was treated as a crane.
This decision leads to a more even handed application of law based upon the day to day realities of a job site, as opposed to legal fictions. So when is a forklift a forklift? Only when its actually a forklift.
In McCoy, the plaintiff was injured during the transport of a 20 foot long beam via a multifunction forklift. The forklift had two modes, it could act as a traditional forklift, or it could be converted into a mobile crane, complete with boom. It was while in this crane mode that plaintiff suffered his injury.
The question for the Court was, which law governing safety precautions governed the operation of this machine, forklift regulations or crane regulations? The answer: BOTH
The Court reasoned that when dealing with multifunction machines, the applicable law changes with the function of the machine. Multifunction vehicles cannot be limited to one standard of law when they are not limited to one function. In this case, the multifunction forklift machine would be governed by forklift regulations when it was being used as a forklift. When it was being used as a mobile crane, the law governing cranes must be followed.
This ruling applies common sense to the law. When most of the safety regulations governing work machines were written, multifunction vehicles were virtually non existent. This decision allows the courts to elevate function over form. It allows a court to focus on what a machine was doing at the time of an accident, not what other functions the machine has the capability to do. It allows the court to look beyond the title of a machine to its actual use. For instance, in this case, the Court did not allow the defendant to hide behind the technicality that the machine was called and billed as a forklift. The machine was used as a crane, so it was treated as a crane.
This decision leads to a more even handed application of law based upon the day to day realities of a job site, as opposed to legal fictions. So when is a forklift a forklift? Only when its actually a forklift.
Friday, August 14, 2009
Damages in a New Light
It has been almost a month to the day that this blog was updated. For those of you that are keeping with us, thank you. Summer hiatus goes by faster than you would think.
When at the recent American Assocation for Justice conference in San Francisco, we had the opportunity to attend a thought provoking conference on damages. One usually thinks of the damages claimed in a law suit as being the medical costs and pain and suffering associated with bodily injury. One also thinks of damages as economic loss in the form of lost wages.
But what about economic loss that isnt measured in actual dollars lost? What about economic loss that is one degree removed from the out of pocket doolar? I'm talking about damage to credit.
The argument works this way- an injury which prevents someone from working causes the loss of income. However, bills do not just stop coming in. So the person has to fall back on using credit cards to pay for things such as groceries and utilities. Credit card balances rise but remember, the injured party still has no money coming in. When the injured party falls behind on their credit card payments, their credit rating is damaged. As you know, a bad credit rating can affect one's ability to get a loan, the interest rates on loans one does get, the ability to buy a house or car in the future among other things.
The damage to one's credit rating is measurable. The increased interest rates one would have to pay on future loans can be acurately predicted and opined about by experts. These experts are generally admissable as witnesses in court. The documentary evidence about one's credit rating is similarly admissable.
The key here is that injury can cause loss that isnt immediately observable. Injry can cause loss that while identifiable, won't necessarily rear its head until years into the future. Such damages must be included- and can be included- when an injured person seeks compensation in court.
When at the recent American Assocation for Justice conference in San Francisco, we had the opportunity to attend a thought provoking conference on damages. One usually thinks of the damages claimed in a law suit as being the medical costs and pain and suffering associated with bodily injury. One also thinks of damages as economic loss in the form of lost wages.
But what about economic loss that isnt measured in actual dollars lost? What about economic loss that is one degree removed from the out of pocket doolar? I'm talking about damage to credit.
The argument works this way- an injury which prevents someone from working causes the loss of income. However, bills do not just stop coming in. So the person has to fall back on using credit cards to pay for things such as groceries and utilities. Credit card balances rise but remember, the injured party still has no money coming in. When the injured party falls behind on their credit card payments, their credit rating is damaged. As you know, a bad credit rating can affect one's ability to get a loan, the interest rates on loans one does get, the ability to buy a house or car in the future among other things.
The damage to one's credit rating is measurable. The increased interest rates one would have to pay on future loans can be acurately predicted and opined about by experts. These experts are generally admissable as witnesses in court. The documentary evidence about one's credit rating is similarly admissable.
The key here is that injury can cause loss that isnt immediately observable. Injry can cause loss that while identifiable, won't necessarily rear its head until years into the future. Such damages must be included- and can be included- when an injured person seeks compensation in court.
Wednesday, July 15, 2009
Judge Sotomayor's Supreme Court Nomination Hearings
Litigants, including injury victims, are not simply affected by the judges and juries who hear their individual cases. They are not just affected by the laws of the state in which they live. Litigants are affected by the interpretations and rulings of law made by the United States Supreme Court.
For example, I would cite the Supreme Court's recent decision in Wyeth v. Levine. The Supreme Court ruled that people injured by drugs may file lawsuits against the drugs' manufacturers in state courts, even if the drugs in question had been approved by the Food and Drug Administration. This decision protects and perhaps even expands the rights of injury victims.
On the other side of the coin, the Supreme Court has also recently ruled against the interest of injury victims. In CSX Transportation, Inc. v Thurston Hensley, a railroad worker who's exposure to asbestos has caused him to develop asbestoses, was denied a cause of action for mental anguish.
What's my point? As you probably know, the U.S. Senate is holding the confirmation hearings for Judge Sonia Sotomayor. We at Tolmage Peskin are advocates for our clients. In that, we take no Democratic or Republican positions. As such, we take no formal position for or against Judge Sotomayor for Supreme Court justice. However, we do recognize that a new justice, with different views and interpretations of the Constitution will affect injury victims and their pursuit of compensation. That is why why are following the hearings closely.
We believe that an informed and capable public is as important informed and educated attorneys. For your convenience, click for transcripts of day 1 and day 2. of the hearings. Check back for transcripts of the rest of the hearing as it goes forward.
-Matthew Lomabrdi, Assocaite Attorney
For example, I would cite the Supreme Court's recent decision in Wyeth v. Levine. The Supreme Court ruled that people injured by drugs may file lawsuits against the drugs' manufacturers in state courts, even if the drugs in question had been approved by the Food and Drug Administration. This decision protects and perhaps even expands the rights of injury victims.
On the other side of the coin, the Supreme Court has also recently ruled against the interest of injury victims. In CSX Transportation, Inc. v Thurston Hensley, a railroad worker who's exposure to asbestos has caused him to develop asbestoses, was denied a cause of action for mental anguish.
What's my point? As you probably know, the U.S. Senate is holding the confirmation hearings for Judge Sonia Sotomayor. We at Tolmage Peskin are advocates for our clients. In that, we take no Democratic or Republican positions. As such, we take no formal position for or against Judge Sotomayor for Supreme Court justice. However, we do recognize that a new justice, with different views and interpretations of the Constitution will affect injury victims and their pursuit of compensation. That is why why are following the hearings closely.
We believe that an informed and capable public is as important informed and educated attorneys. For your convenience, click for transcripts of day 1 and day 2. of the hearings. Check back for transcripts of the rest of the hearing as it goes forward.
-Matthew Lomabrdi, Assocaite Attorney
Thursday, July 9, 2009
Dog Bites Man
There are a lot of dogs in the New York City area; thousands, actually. Most encounters with the City's dogs are friendly and fun. Sometimes, unfortunately, they do not end up as one intended. If a dog attacks and injures you, can you hold the owner liable? The short answer is, maybe. An owner is strictly liable for a dog bite if the injured person can show that the owner knew or should have known of the dog's vicious propensity.
Of course, that means that injured person must show that the dog does in fact have a vicious propensity. Technically, factors such as the dog being “known to growl, snap or bare its teeth," or that "the owner chose to restrain the dog, and the manner in which the dog was restrained” can be considered to determine if the dog has a vicious propensity. But in practice, the old cliché, “every dog gets one bite” holds sway. In other words, if you can't show that the dog bit someone else, you'll probably lose your law suit.
New York's dog bite law is not based on common law negligence. There is no analysis of what the owner did or should have done vis-a-vis minding and controlling his or her dog. There is only an analysis of the dog's history. Let me give you an example. Let us assume that a person brings a dog into a hospital nursery and leaves it there. If the dog hurts a baby, the owner is not liable unless it can be shown that the dog had vicious propensity. There's no argument that a reasonable person would not leave a dog unattended in a nursery. Its all about the dog's prior behavior. (There would most likely be a viable claim against the hospital for allowing the dog into such a sensitive place).
The problems with the dog bite law now becomes apparent. How do you prove that this dog had a vicious propensity? Unless a prior bite victim had the expertise to lodge a complaint with the NYC Department of Health and Mental Hygiene, there would be no record of a prior bite. How does one know that a dog would regularly snap, growl or bare its teeth, if the first time you saw the dog was when it bit you? Would the dog owner's neighbor take your side and rat on the dog, if asked? New York law makes it quite difficult to win a dog bite case
Please do not mistake me for someone who dislikes dogs. I love them; there are two in my family. And that is why the law in New York should be changed. The law should not focus so much on the past conduct of the dog. Instead the law should focus on the owner, on the human. After all, a person can control and explain their conduct much more than an animal can. Focusing on the lapse of judgment, or negligence, of a human can ensure that a person injured by a dog gets his day in court without having to paint a dog a viscous beast.
Matthew Lombardi, Associate Attorney
Of course, that means that injured person must show that the dog does in fact have a vicious propensity. Technically, factors such as the dog being “known to growl, snap or bare its teeth," or that "the owner chose to restrain the dog, and the manner in which the dog was restrained” can be considered to determine if the dog has a vicious propensity. But in practice, the old cliché, “every dog gets one bite” holds sway. In other words, if you can't show that the dog bit someone else, you'll probably lose your law suit.
New York's dog bite law is not based on common law negligence. There is no analysis of what the owner did or should have done vis-a-vis minding and controlling his or her dog. There is only an analysis of the dog's history. Let me give you an example. Let us assume that a person brings a dog into a hospital nursery and leaves it there. If the dog hurts a baby, the owner is not liable unless it can be shown that the dog had vicious propensity. There's no argument that a reasonable person would not leave a dog unattended in a nursery. Its all about the dog's prior behavior. (There would most likely be a viable claim against the hospital for allowing the dog into such a sensitive place).
The problems with the dog bite law now becomes apparent. How do you prove that this dog had a vicious propensity? Unless a prior bite victim had the expertise to lodge a complaint with the NYC Department of Health and Mental Hygiene, there would be no record of a prior bite. How does one know that a dog would regularly snap, growl or bare its teeth, if the first time you saw the dog was when it bit you? Would the dog owner's neighbor take your side and rat on the dog, if asked? New York law makes it quite difficult to win a dog bite case
Please do not mistake me for someone who dislikes dogs. I love them; there are two in my family. And that is why the law in New York should be changed. The law should not focus so much on the past conduct of the dog. Instead the law should focus on the owner, on the human. After all, a person can control and explain their conduct much more than an animal can. Focusing on the lapse of judgment, or negligence, of a human can ensure that a person injured by a dog gets his day in court without having to paint a dog a viscous beast.
Matthew Lombardi, Associate Attorney
Tuesday, July 7, 2009
Thursday, July 2, 2009
Lead Poisoning
Living in New York City, with its many older building, lead poisoning in children takes on a special concern. In 2008, there were almost 2,000 reported cases of lead poisoning im kids. We here at Tolmage Peskin have done many many lead cases. Let's go through one:
A child lead exposure case includes several elements that must be addressed
1) Show lead poisoning
2) Show the poisoning damaged your child
3) Establish that the lead came from a specific source, usually your home
A general case can illustrate these principles. The client, we’ll call him “John,” lived with his parents in a NYC apartment. When John was one year old, he was diagnosed as having a blood lead level of 15 mcg/dL (micrograms per decaliter). According to the Centers for Disease Control and Prevention (CDC), a blood lead level of over 10 mcg/dL is considered lead poisoning. John’s lead level, despite treatment rose to 61mcg/dL. This is dangerously high. Lead poisoning can cause learning disabilities and impairments, slowed growth, nervous system problems, seizures and death. The New York City Department of Health was notified and they performed a lead test of the apartment. The testing found that the apartment contained multiple lead hazards and violations.
Lets plug this into the elements: 1)Lead poisoning was medically shown. 2) The high lead levels resulted in serious harm for John. He suffered from growth problems, major learning disabilities requiring placement in special education and behavioral problems. 3) The lead was traced to a specific source, the apartment. The testing of the home was contemporaneous with the finding of lead poisoning, establishing a firm link to John’s poisoning.
Despite obtaining compensation for John, the case wasnt really done. Like with many victims of lead poisoning, John's injuries left him in need of special services such as special education, specialized private tutoring, an attendant, and frequent medical treatments. As a lead poisoning victim's parent, you should be aware that a special needs trust can be set up to provide the funds needed for this type of after accident care. Such treatments, coupled with a good lawyer, can ensure a lead poinsoing victim can grow up to lead a successful life.
A child lead exposure case includes several elements that must be addressed
1) Show lead poisoning
2) Show the poisoning damaged your child
3) Establish that the lead came from a specific source, usually your home
A general case can illustrate these principles. The client, we’ll call him “John,” lived with his parents in a NYC apartment. When John was one year old, he was diagnosed as having a blood lead level of 15 mcg/dL (micrograms per decaliter). According to the Centers for Disease Control and Prevention (CDC), a blood lead level of over 10 mcg/dL is considered lead poisoning. John’s lead level, despite treatment rose to 61mcg/dL. This is dangerously high. Lead poisoning can cause learning disabilities and impairments, slowed growth, nervous system problems, seizures and death. The New York City Department of Health was notified and they performed a lead test of the apartment. The testing found that the apartment contained multiple lead hazards and violations.
Lets plug this into the elements: 1)Lead poisoning was medically shown. 2) The high lead levels resulted in serious harm for John. He suffered from growth problems, major learning disabilities requiring placement in special education and behavioral problems. 3) The lead was traced to a specific source, the apartment. The testing of the home was contemporaneous with the finding of lead poisoning, establishing a firm link to John’s poisoning.
Despite obtaining compensation for John, the case wasnt really done. Like with many victims of lead poisoning, John's injuries left him in need of special services such as special education, specialized private tutoring, an attendant, and frequent medical treatments. As a lead poisoning victim's parent, you should be aware that a special needs trust can be set up to provide the funds needed for this type of after accident care. Such treatments, coupled with a good lawyer, can ensure a lead poinsoing victim can grow up to lead a successful life.
Wednesday, June 17, 2009
Assumption of the Risk
Assumption of the risk ("AOR") is one of the classic defense arguments made against an injured person. It goes something like this: "I, the defendant, am not responsible for your injury because you engaged in an activity you knew could be dangerous." In other words, the injured party assumed the risk of injury. As trial attorneys we at Tolmage Peskin come across this defense frequently.
The AOR defense has its limits. Justice Schneier gave a good summary of those limits in the case of Fourtounis v. MJB Service Station Inc. Justice Schneier first reminds us that AORis not necessarily an absolute bar to recovery. AOR is a measure of defendant's duty of care. In other words, if there's a situation where the plaintiff has assumed the risk, the defendant has to do less, if anything at all, to insure plaintiff's safety.
This of course, leads to the conclusion that a defendant isn't totally off the hook. Take Fourtounis as the example. In this case, the plaintiff got up on a repair shop's lift with his car while the lift was on the ground,assisting in the car's cleaning. An employee not realizing plaintiff was on the lift, raised it. Plaintiff didn't realize he was in the air, stepped back, and fell.
The Court here found that plaintiff voluntarily placed himself in a hazardous situation by being on the lift. This should invoke AOR. However, because AOR is not an absolute defense, the shop still had a duty of care. The shop's duty was to make sure no one was on the lift before it was raised. It knew that plaintiff was assisting with the cleanup of the car. It knew that he was around the lift. The shop's failed to make sure all was clear before raising the lift.
Now let's make one thing clear. AOR also applies to damages. It will be argued by the defendant's that plaintiff should be awarded less for his injuries because he voluntarily placed himself upon the lift. This argument is a winner. But once the conversation is about how much money an injured person is awarded as opposed to if a injured person is going to be awarded money, the injured person is in a good position.
The AOR defense has its limits. Justice Schneier gave a good summary of those limits in the case of Fourtounis v. MJB Service Station Inc. Justice Schneier first reminds us that AORis not necessarily an absolute bar to recovery. AOR is a measure of defendant's duty of care. In other words, if there's a situation where the plaintiff has assumed the risk, the defendant has to do less, if anything at all, to insure plaintiff's safety.
This of course, leads to the conclusion that a defendant isn't totally off the hook. Take Fourtounis as the example. In this case, the plaintiff got up on a repair shop's lift with his car while the lift was on the ground,assisting in the car's cleaning. An employee not realizing plaintiff was on the lift, raised it. Plaintiff didn't realize he was in the air, stepped back, and fell.
The Court here found that plaintiff voluntarily placed himself in a hazardous situation by being on the lift. This should invoke AOR. However, because AOR is not an absolute defense, the shop still had a duty of care. The shop's duty was to make sure no one was on the lift before it was raised. It knew that plaintiff was assisting with the cleanup of the car. It knew that he was around the lift. The shop's failed to make sure all was clear before raising the lift.
Now let's make one thing clear. AOR also applies to damages. It will be argued by the defendant's that plaintiff should be awarded less for his injuries because he voluntarily placed himself upon the lift. This argument is a winner. But once the conversation is about how much money an injured person is awarded as opposed to if a injured person is going to be awarded money, the injured person is in a good position.
Wednesday, June 10, 2009
Negligent Supervision Part 2
Last week I blogged about the high standard a litigant must meet in order to successfully bring a negligent supervision suit against a school. As luck would have it, the NY Law Journal just published an example of a case that did meet that high standard.
In Thacker v. City of New York, plaintiff brought suit after she was assaulted by another student. While going down a hallway during an extracurricular activity, another student pushed the plaintiff, causing her to fall. As a result of the shove, the plaintiff suffered injuries to her knee. A student pushing another is a classic example of a an impulsive, unanticipated act for which a school is not held responsible.
An examination of Thacker's facts reveals why it was allowed to go to trial. The assaulting student had a history of disciplinary problems. At the time of the assault, the offending student was suspended from school but allowed to attend the extracurricular activity.
Not only did the offending student have a history of problems in general, but he had a history of run ins with the plaintiff. The offending student was once disciplined for calling the plaintiff a "bitch." The offending student also threatened plaintiff with a bottle and threw a chair across the room when reprimanded by a teacher.
The Court found that the school’s personnel should have monitored the offending student closely in light of his past behavior. The school personnel should have been extra vigilant considering that the plaintiff was in close proximity to the offending student.
The Court also found that the offending student’s behavior should have been anticipated because the school personnel created a situation where such a shove was foreseeable. During the extracurricular activity, a teacher announced that there was pizza in another room. Due to the limited quantity, the pizza was first come first serve. This "first come first serve" situation created a climate where students would run, jostle, compete, and push to get pizza. It would be foreseeable that the offending student would get carried away and get physical with others. It is further foreseeable that the offending student would get physical with someone he has had problems with in the past, such as plaintiff.
All these factors led the Court to conclude that the push given to plaintiff was not an unanticipated, impulsive, spontaneous act. As such, plaintiff was allowed to bring her case before a jury. I bring up this case to show that while negligent supervision cases are difficult, they are not impossible to bring, given the appropriate circumstances.
-Matthew Lombard, Associate Attorney
In Thacker v. City of New York, plaintiff brought suit after she was assaulted by another student. While going down a hallway during an extracurricular activity, another student pushed the plaintiff, causing her to fall. As a result of the shove, the plaintiff suffered injuries to her knee. A student pushing another is a classic example of a an impulsive, unanticipated act for which a school is not held responsible.
An examination of Thacker's facts reveals why it was allowed to go to trial. The assaulting student had a history of disciplinary problems. At the time of the assault, the offending student was suspended from school but allowed to attend the extracurricular activity.
Not only did the offending student have a history of problems in general, but he had a history of run ins with the plaintiff. The offending student was once disciplined for calling the plaintiff a "bitch." The offending student also threatened plaintiff with a bottle and threw a chair across the room when reprimanded by a teacher.
The Court found that the school’s personnel should have monitored the offending student closely in light of his past behavior. The school personnel should have been extra vigilant considering that the plaintiff was in close proximity to the offending student.
The Court also found that the offending student’s behavior should have been anticipated because the school personnel created a situation where such a shove was foreseeable. During the extracurricular activity, a teacher announced that there was pizza in another room. Due to the limited quantity, the pizza was first come first serve. This "first come first serve" situation created a climate where students would run, jostle, compete, and push to get pizza. It would be foreseeable that the offending student would get carried away and get physical with others. It is further foreseeable that the offending student would get physical with someone he has had problems with in the past, such as plaintiff.
All these factors led the Court to conclude that the push given to plaintiff was not an unanticipated, impulsive, spontaneous act. As such, plaintiff was allowed to bring her case before a jury. I bring up this case to show that while negligent supervision cases are difficult, they are not impossible to bring, given the appropriate circumstances.
-Matthew Lombard, Associate Attorney
Wednesday, June 3, 2009
Negligent Supervision claims against schools
First off let me apologize for not updating the Tolmage Peskin blog last week. Sometimes our clients' needs leaves us no time to post.
I came across a decision in today's NY Law Journal, TZ v. City of New York, in which a female student sued her school after being sexually assaulted in class. The teacher was present in the class, but failed to notice, prevent, or stop the assault. In an unusual turn, the only claim against the school upheld by the Court and preserved for trial was the negligent supervision claim.
This is worthy of note because negligent supervision claims are difficult to win. You have to prove: (1) that the school had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; or in other words that the third party's (usually another student) conduct could reasonably have been anticipated AND (2) that the conduct was of sufficient nature and duration such that school personnel could actually have stopped it.
What does this mean? Examples help. A school bus driver was not responsible for an assault right outside his bus. In that case, the bus driver had no notice that a fight was about to ensue. Even if he did, the Court ruled there was no way he would have been able to get out of his seat in time to break things up before the plaintiff was injured. In another example, a teacher was not responsible for a student’s injury when the student fell from a hay ride. The Court ruled that the teacher would have had no way to know a bump was coming up and even if she did, would have had no ability to grab the student to prevent the fall. A third example: a school was not responsible for an assault in a hallway because the assaulting student had no history of violent behavior (so the school wasn’t on notice). Even if the school was on notice, the assault was spontaneous lacking a preceding argument or buildup; a teacher in the hallway could never had reached the students in time to prevent the punches.
Lets contrast these losing cases with TZ. In TZ, there had been a several prior sexual assaults in the school. As such, the school was on notice that this type of behavior could and has occurred. Teachers should thus be on the lookout. Also the assault was in a classroom, all the teacher had to do was look up at the group of kids around plaintiff to know something was going on. The assault lasted somewhere between 5-7 minutes. The Court ruled that this was enough time for the teacher to go to that part of the classroom and stop the assault.
What does this mean? It means that if your child was randomly hit in the hallway or at recess, you probably don’t have a case against the school (you of course have a claim against the assaulting student). You really have to prove that the school knew the assaulting student had a history of violence or that the assaulting student was harassing/bullying your child. You also really have to prove that school personnel would have been in a position to stop the assault when it did occur. This high standard protects schools from law suits stemming from most types of school ground assaults.
Tolmage Peskin knows that with a negligent supervision case against a school, the devil is in the details. It is the sort of case that can be won given the right circumstances. Contacting a lawyer to go over the details and circumstances of your potential case is truly the only way to know whether you can bring negligent supervision claim.
-Matthew Lombardi, Associate Attorney
Wednesday, May 20, 2009
Forum Selection Clauses in Contracts
In Yakin v. Tyler Corp, a case reported in last week’s NY Law Journal, the US Court of Appeals upheld a contract provision which limited the litigation of any dispute between the parties to Nassau County, NY.
There is nothing particularly unique about this decision. It simply got me thinking of forum selection clauses. We here at Tolmage Peskin have increasingly come across these contract provisions in our commercial practice. Its now routine for me to ask a potential client in the first few minutes of the initial consultation if their contract has a forum selection clause.
People have to be very careful about the contracts they sign. The general principle in NY is that forum selection clauses are valid and enforceable. In short, if you sign a contract limiting your ability to bring a suit to California, you’re going to California in all likelihood.
For both litigants and lawyers, the implications of these clauses are profoundly felt. Practically speaking, the NY may not be able to take the case. The potential client has to have a lawyer who is licensed to practice in the forum designated by the contract. If the NY lawyer isn’t admitted to the contractual forum’s bar, the potential client is forced to look elsewhere.
In my opinion, forum selection clauses make it prohibitively difficult for individuals and consumers to bring suits; that is why these clauses can be so dangerous. If you’re a consumer signing a contact: 1) you probably don’t have any input on the contact’s drafting and 2) you don’t have the resources to travel and litigate. Indeed, very few individuals or consumers can travel for litigation, even if the chosen forum is only several states away from NY (you try driving back and forth to, say, Delaware and see how costly and problematic it becomes). We had a case where the forum designated was London, England. Our client was an elderly woman; she wasn’t going to London. She could not afford the travel costs, the food and lodging costs, plus the legal fees and strain of travel. Our challenge was to keep the case here in NY. The case was resolved without having to go to London. If the case was removed to London, the defendants would have for all intents and purposes, won.
Are forum selection clauses going to disappear? No; courts and corporations like them because they provide a bright line as to where disputes are to be litigated. As a consumer, you must protect yourself. Ask if there is a forum selection clause in the contract. Ask where that forum is. See if you can negotiate a more convenient forum for yourself. Or simply walk away from the contract. You may well be better off in the long run.
-Matthew Lombardi, Associate Attorney
There is nothing particularly unique about this decision. It simply got me thinking of forum selection clauses. We here at Tolmage Peskin have increasingly come across these contract provisions in our commercial practice. Its now routine for me to ask a potential client in the first few minutes of the initial consultation if their contract has a forum selection clause.
People have to be very careful about the contracts they sign. The general principle in NY is that forum selection clauses are valid and enforceable. In short, if you sign a contract limiting your ability to bring a suit to California, you’re going to California in all likelihood.
For both litigants and lawyers, the implications of these clauses are profoundly felt. Practically speaking, the NY may not be able to take the case. The potential client has to have a lawyer who is licensed to practice in the forum designated by the contract. If the NY lawyer isn’t admitted to the contractual forum’s bar, the potential client is forced to look elsewhere.
In my opinion, forum selection clauses make it prohibitively difficult for individuals and consumers to bring suits; that is why these clauses can be so dangerous. If you’re a consumer signing a contact: 1) you probably don’t have any input on the contact’s drafting and 2) you don’t have the resources to travel and litigate. Indeed, very few individuals or consumers can travel for litigation, even if the chosen forum is only several states away from NY (you try driving back and forth to, say, Delaware and see how costly and problematic it becomes). We had a case where the forum designated was London, England. Our client was an elderly woman; she wasn’t going to London. She could not afford the travel costs, the food and lodging costs, plus the legal fees and strain of travel. Our challenge was to keep the case here in NY. The case was resolved without having to go to London. If the case was removed to London, the defendants would have for all intents and purposes, won.
Are forum selection clauses going to disappear? No; courts and corporations like them because they provide a bright line as to where disputes are to be litigated. As a consumer, you must protect yourself. Ask if there is a forum selection clause in the contract. Ask where that forum is. See if you can negotiate a more convenient forum for yourself. Or simply walk away from the contract. You may well be better off in the long run.
-Matthew Lombardi, Associate Attorney
Wednesday, May 13, 2009
Your Internet and the legal world
Social Networking sites such as Facebook, MySpace, and Twitter, as well as the proliferation of blogs have changed the way we communicate with each other and present ourselves to the world.
As a general matter, anything you place on the web is open for the public to see. If you have a public MySpace page or blog for example, that content is fair game for a lawyer. We had a case in which our client was a blogger. The defense Google'd our client's name, found his blog, downloaded exerpts and questioned him line by line from it during his deposition. As much as our firm was angered by such a tactic, the fact is our client's blog was discoverable.
We had a case where a minor, unfortunately, was one of the defendants. The minor defendant had a MySapce page on which he stated "booze" was among his favorite things. We found the page. Given the nature of the litigation, we questioned him thoroughly about underage drinking and what he meant on his MySpace page.
Many people make their social networking website pages private. I do not believe making a page "private" can prevent the content from being used in litigation. Federal courts outside of NY have upheld subpoenas to view and take information from litigants' private social networking site pages. I believe this precedent could also be expanded to content that users have taken off their sites, but is still stored in the social networking websites' archives and databases.
Twitter presents an interesting case. Twitter is much more fluid, with posts coming in the form of first person statements. You're talking via Twitter to your Internet audience about your day, you're feelings, etc in almost real time. I would argue that your Twitter posts could become admissible evidence via the "excited utterance", "present sense impressions," or even "statement against interest" exceptions to the NY hearsay rule.
Jurors' postings on the web are also fair game. There have been an increasing number of motions to set aside the verdict based upon what jurors have posted on the Internet. If you're on a jury, I would counsel you to be very circumspect about what you write concerning a case you participated in. And please, please, don't write about a case while its still going on.
What s the bottom line here? The bottom line is that courts are starting to recognize the information individuals post on the web. Lawyers are increasingly finding ways to utilize what you post about yourself and others. I wouldn't tell you to swear off social networking sites like Facebook or Twitter. I would just say: be aware and know that what you post can and will resurface.
-Matthew Lombardi, Associate Attorney
As a general matter, anything you place on the web is open for the public to see. If you have a public MySpace page or blog for example, that content is fair game for a lawyer. We had a case in which our client was a blogger. The defense Google'd our client's name, found his blog, downloaded exerpts and questioned him line by line from it during his deposition. As much as our firm was angered by such a tactic, the fact is our client's blog was discoverable.
We had a case where a minor, unfortunately, was one of the defendants. The minor defendant had a MySapce page on which he stated "booze" was among his favorite things. We found the page. Given the nature of the litigation, we questioned him thoroughly about underage drinking and what he meant on his MySpace page.
Many people make their social networking website pages private. I do not believe making a page "private" can prevent the content from being used in litigation. Federal courts outside of NY have upheld subpoenas to view and take information from litigants' private social networking site pages. I believe this precedent could also be expanded to content that users have taken off their sites, but is still stored in the social networking websites' archives and databases.
Twitter presents an interesting case. Twitter is much more fluid, with posts coming in the form of first person statements. You're talking via Twitter to your Internet audience about your day, you're feelings, etc in almost real time. I would argue that your Twitter posts could become admissible evidence via the "excited utterance", "present sense impressions," or even "statement against interest" exceptions to the NY hearsay rule.
Jurors' postings on the web are also fair game. There have been an increasing number of motions to set aside the verdict based upon what jurors have posted on the Internet. If you're on a jury, I would counsel you to be very circumspect about what you write concerning a case you participated in. And please, please, don't write about a case while its still going on.
What s the bottom line here? The bottom line is that courts are starting to recognize the information individuals post on the web. Lawyers are increasingly finding ways to utilize what you post about yourself and others. I wouldn't tell you to swear off social networking sites like Facebook or Twitter. I would just say: be aware and know that what you post can and will resurface.
-Matthew Lombardi, Associate Attorney
Tuesday, May 5, 2009
Advocating Outside the Courtroom
We here at Tolmage Peskin believe that advocating for our clients doesn't stop when you exit the four walls of the courtroom. We know that injured people are not only affected by the individual facts and circumstances of their cases, they are affected by the laws and policies set forth by New York State.
Because our clients are affected by elements outside their individual cases, we are members of the New York State Trial Lawyers Association. NYSTLA is a state-wide organization of attorneys who seek "to promote a safer and healthier society, to assure access to the civil justice system by those who are wrongfully injured and to advance representation of the public by ethical, well-trained lawyers."
On April 28, NYSTLA organized a group of over 170 lawyers to go to Albany and talk to lawmakers in the New York State Assembly and New York State Senate. I had the opportunity to be part of that group. We talked to these lawmakers about issues that affect injured New Yorkers. We tried to impress upon them that the hurt and injured are among the most vulnerable subsets of people. That injured people need to be assured access to the court house. That laws must be strengthened so that the rights of the injured are protected just as much as the rights of insurance companies and landlords are protected. Many of the issues we talked to lawmakers about can be found here.
I was encouraged by the NYSTLA trip to Albany. The lawmakers seemed very receptive to what NYSTLA attorneys had to share with them. I know the wheels of government turn slow; they are supposed to. But I believe that the advocacy we engaged in on behalf of the injured, coupled with a sustained campaign to educate people about our issues can bring about change. This sort of work is important; so that if you ever find yourself injured, you have the full protections afforded under law at your disposal.
Because our clients are affected by elements outside their individual cases, we are members of the New York State Trial Lawyers Association. NYSTLA is a state-wide organization of attorneys who seek "to promote a safer and healthier society, to assure access to the civil justice system by those who are wrongfully injured and to advance representation of the public by ethical, well-trained lawyers."
On April 28, NYSTLA organized a group of over 170 lawyers to go to Albany and talk to lawmakers in the New York State Assembly and New York State Senate. I had the opportunity to be part of that group. We talked to these lawmakers about issues that affect injured New Yorkers. We tried to impress upon them that the hurt and injured are among the most vulnerable subsets of people. That injured people need to be assured access to the court house. That laws must be strengthened so that the rights of the injured are protected just as much as the rights of insurance companies and landlords are protected. Many of the issues we talked to lawmakers about can be found here.
I was encouraged by the NYSTLA trip to Albany. The lawmakers seemed very receptive to what NYSTLA attorneys had to share with them. I know the wheels of government turn slow; they are supposed to. But I believe that the advocacy we engaged in on behalf of the injured, coupled with a sustained campaign to educate people about our issues can bring about change. This sort of work is important; so that if you ever find yourself injured, you have the full protections afforded under law at your disposal.
Monday, April 27, 2009
Exiting From a Height -Labor Law 240(1)
Construction is one of the most dangerous professions one can engage in. Accidents on construction sites happen with unfortunate frequency. The Occupational Safety and Health Administration (OSHA) estimates that some 65% of construction workers work on scaffolds or heights. Thus falling from a height represents one of the most common and dangerous accidents on a job site.
A recent NY Trial Courtt decision, Mrockowski v. City of New York, helps ensure workers’ safety when toiling from a height. In general, New York State has Labor Law 240, or the "scaffold law," which protects workers who fall from a height. Labor Law §240(1) states that all contractors and owners who erect or demolish a building have to erect scaffolds, ladders, ropes, among other devices, to provide for a worker’s safety.
Nothing in the wording of §240(1) addresses entrance or egress from a height. Does a contractor or building owner have to provide a safe way to get on or off of a scaffold? Mrockowski v. City says YES. The plaintiff was working from a scaffold 3 ½ stories off the ground. There was no ladder or other means of getting on or off the scaffold, so the plaintiff stepped from the scaffold onto the top of the brick wall that was being built. As he did so, the bricks gave way, causing the plaintiff to lose his balance and fall, causing injury.
The Court, quoting the NY Court of Appeals, recognized the core objective of §240(1) as "requiring protective devices for those working at heights...to allow them to complete their work safely and protect them from falling." Therefore, "a scaffold that does not provide a safe means of returning to the ground level does not provide the protection required by Labor Law section §240(1)."
This is a logical interpretation of the scaffold law to us here at Tolmage Peskin. It would make no sense to protect a worker when he is working at 20' in the air but not protect him when he’s trying to get down from that height. Deciding that the scaffold law includes entrance and egress, ensures that a worker must be protected throughout the whole process of working from a dangerous height; climbing to that height, working at the height and coming back down.
This decision is in line with what Tolmage Peskin believes, and therefore demands from contractors and land owners- namely safety for a worker throughout the construction process.
A recent NY Trial Courtt decision, Mrockowski v. City of New York, helps ensure workers’ safety when toiling from a height. In general, New York State has Labor Law 240, or the "scaffold law," which protects workers who fall from a height. Labor Law §240(1) states that all contractors and owners who erect or demolish a building have to erect scaffolds, ladders, ropes, among other devices, to provide for a worker’s safety.
Nothing in the wording of §240(1) addresses entrance or egress from a height. Does a contractor or building owner have to provide a safe way to get on or off of a scaffold? Mrockowski v. City says YES. The plaintiff was working from a scaffold 3 ½ stories off the ground. There was no ladder or other means of getting on or off the scaffold, so the plaintiff stepped from the scaffold onto the top of the brick wall that was being built. As he did so, the bricks gave way, causing the plaintiff to lose his balance and fall, causing injury.
The Court, quoting the NY Court of Appeals, recognized the core objective of §240(1) as "requiring protective devices for those working at heights...to allow them to complete their work safely and protect them from falling." Therefore, "a scaffold that does not provide a safe means of returning to the ground level does not provide the protection required by Labor Law section §240(1)."
This is a logical interpretation of the scaffold law to us here at Tolmage Peskin. It would make no sense to protect a worker when he is working at 20' in the air but not protect him when he’s trying to get down from that height. Deciding that the scaffold law includes entrance and egress, ensures that a worker must be protected throughout the whole process of working from a dangerous height; climbing to that height, working at the height and coming back down.
This decision is in line with what Tolmage Peskin believes, and therefore demands from contractors and land owners- namely safety for a worker throughout the construction process.
Thursday, April 23, 2009
Sueing a municipality: Gorman and Prior Written Notice
The NY Court of Appeals recently limited a plaintiff’s ability to recover from a municipality for a sidewalk accident. Generally, before you can sue a municipality for a defect, that municipality must have prior notice in writing that the defect exists.
Gorman v. Town of Huntington limited what it means to give prior written notice to a municipality.
In Gorman, the sidewalk defect was reported in writing several times to the Huntington Town Department of Engineering; the municipal department responsible for fixing sidewalks. However, town law require that all notices of a defect be reported to the Town Clerk or Highway Superintendent. No one told the reporting individuals that they were reporting the defect to the wrong statutory entities. Indeed, the Department of Engineering was the department that kept records of complaints and defects in the course of making repairs.
In ruling against the plaintiffs, the Court of Appeals resorted to its doctrine that "prior written notice provisions, enacted in derogation of common law are always strictly construed." Proirier v. City of Schenectady, 85 NY2d 310. In other words, since the Huntington law explicitly said prior written notice had to go to the Town Clerk or Highway Superintendent, notice to the Department of Engineering was insufficient. As such, the Town of Huntington can claim that it did not have prior written notice of the injury causing sidewalk defect.
The Court of Appeals looks like its elevating form over substance. As the Court itself observed, "The purpose of a prior written notice provision is to place a municipality on notice that there is a defect on publicly owned property which, if left unattended, could result in injury." Wasn’t that goal accomplished here? In reality, the town was notified of the defect. It was notified in writing on multiple occasions. What’s more, the town entity which would actually address the problem was informed. Why require a person to notify the Town Clerk or Highway Superintendent of a defective sidewalk when those officials would simply pass along the complaint to the Department of Engineering?
We at Tolmage, Peskin agree with the Court that a municipality cannot be expected to be "cognizant of every crack or defect within its borders" and that a municipality should not be held liable for a defect it did not have an opportunity to repair. However, when a municipality is for all intensive purposes notified, whether through the statutory channels or not, an injured party should be able to find recourse through the Courts.
The bottom line at this juncture is that unless a municipality’s prior written notice law is followed to the letter, a plaintiff will be unable to recover from said municipality for any injury, no matter how grievous.
Gorman v. Town of Huntington limited what it means to give prior written notice to a municipality.
In Gorman, the sidewalk defect was reported in writing several times to the Huntington Town Department of Engineering; the municipal department responsible for fixing sidewalks. However, town law require that all notices of a defect be reported to the Town Clerk or Highway Superintendent. No one told the reporting individuals that they were reporting the defect to the wrong statutory entities. Indeed, the Department of Engineering was the department that kept records of complaints and defects in the course of making repairs.
In ruling against the plaintiffs, the Court of Appeals resorted to its doctrine that "prior written notice provisions, enacted in derogation of common law are always strictly construed." Proirier v. City of Schenectady, 85 NY2d 310. In other words, since the Huntington law explicitly said prior written notice had to go to the Town Clerk or Highway Superintendent, notice to the Department of Engineering was insufficient. As such, the Town of Huntington can claim that it did not have prior written notice of the injury causing sidewalk defect.
The Court of Appeals looks like its elevating form over substance. As the Court itself observed, "The purpose of a prior written notice provision is to place a municipality on notice that there is a defect on publicly owned property which, if left unattended, could result in injury." Wasn’t that goal accomplished here? In reality, the town was notified of the defect. It was notified in writing on multiple occasions. What’s more, the town entity which would actually address the problem was informed. Why require a person to notify the Town Clerk or Highway Superintendent of a defective sidewalk when those officials would simply pass along the complaint to the Department of Engineering?
We at Tolmage, Peskin agree with the Court that a municipality cannot be expected to be "cognizant of every crack or defect within its borders" and that a municipality should not be held liable for a defect it did not have an opportunity to repair. However, when a municipality is for all intensive purposes notified, whether through the statutory channels or not, an injured party should be able to find recourse through the Courts.
The bottom line at this juncture is that unless a municipality’s prior written notice law is followed to the letter, a plaintiff will be unable to recover from said municipality for any injury, no matter how grievous.
Monday, April 6, 2009
In New York City, a sidewalk is the responsibility of the owner of the abutting property. It is the private landowner who is responsible for making sure the sidewalk is free from defects and safe for pedestrians to walk upon.
There is one very big exception to this law. This law does not apply to the owners of "one-, two- or three family residential real property real property that it (1) in whole or in part, owner occupied, and (2) used exclusively for residential purposes." If the private landowner falls into this exception, the City of New York is responsible for the sidewalk.
What does "exclusively for residential purposes" mean? Story v. City of New York, et al. (NY County 8022/07) helps clarify the phrase. In Story the plaintiff fell in front of a home owned and occupied by co defendants. The co defendants son placed a sign on the house declaring himself an attorney at that premises. The son also has the address listed with the Office of Court Administration as the site of his law practice. The question is, does the son's use of the address violate the "exclusively for residential purposes" requirement?
The Court said "no." The Court rested its decision the fact that the son does not actually practice law out of the home in question; there is no office in the home, the son does not bring clients to the home. The son simply uses the address as his official address. The property’s actual and only use was a residence. The son’s business use of the property was, as the Court put it, "a mail drop at most...."
Under this formulation, it seems that you have to ask yourself, what is the functional purpose of property someone fell in front of? Is this property really commercial? Do not take it for granted that a professional shingle hung outside or a listing in a directory makes a property commercial. New York City may still be liable and may still have to be brought into the case. At the beginning stages of a case, until a property’s status as commercial or exclusively residential is clearly ascertained, putting NYC on notice of the accident will ensure that the injured person’s rights are fully protected. An injured person does not want to be in a position where they sue only the property owner and later come to find out that NYC is really responsible for the sidewalk.
-Matthew Lombardi, Associate Attorney
There is one very big exception to this law. This law does not apply to the owners of "one-, two- or three family residential real property real property that it (1) in whole or in part, owner occupied, and (2) used exclusively for residential purposes." If the private landowner falls into this exception, the City of New York is responsible for the sidewalk.
What does "exclusively for residential purposes" mean? Story v. City of New York, et al. (NY County 8022/07) helps clarify the phrase. In Story the plaintiff fell in front of a home owned and occupied by co defendants. The co defendants son placed a sign on the house declaring himself an attorney at that premises. The son also has the address listed with the Office of Court Administration as the site of his law practice. The question is, does the son's use of the address violate the "exclusively for residential purposes" requirement?
The Court said "no." The Court rested its decision the fact that the son does not actually practice law out of the home in question; there is no office in the home, the son does not bring clients to the home. The son simply uses the address as his official address. The property’s actual and only use was a residence. The son’s business use of the property was, as the Court put it, "a mail drop at most...."
Under this formulation, it seems that you have to ask yourself, what is the functional purpose of property someone fell in front of? Is this property really commercial? Do not take it for granted that a professional shingle hung outside or a listing in a directory makes a property commercial. New York City may still be liable and may still have to be brought into the case. At the beginning stages of a case, until a property’s status as commercial or exclusively residential is clearly ascertained, putting NYC on notice of the accident will ensure that the injured person’s rights are fully protected. An injured person does not want to be in a position where they sue only the property owner and later come to find out that NYC is really responsible for the sidewalk.
-Matthew Lombardi, Associate Attorney
Wednesday, March 25, 2009
WELCOME
Welcome to Tolmage, Peskin Harris and Falick's blog. We are a civil litigation firm based in lower Manhattan, New York City.
The goal of our web log is to inform both layman and lawyers alike about current law as we see it. Don't worry, this blog isn't going to be a forum for us to brag about our successes. We're going to talk about a mix of cases- some ours, some not- in the goal of providing a forum where everyone can gain a greater appreciation and understanding of New York law.
We hope you enjoy the journey as much as we will.
-Matthew Lombardi, associate attorney at TPHF
The goal of our web log is to inform both layman and lawyers alike about current law as we see it. Don't worry, this blog isn't going to be a forum for us to brag about our successes. We're going to talk about a mix of cases- some ours, some not- in the goal of providing a forum where everyone can gain a greater appreciation and understanding of New York law.
We hope you enjoy the journey as much as we will.
-Matthew Lombardi, associate attorney at TPHF
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